What happens when an F-1 student is working pursuant to optional practice training (OPT) and it expires while a cap-subject H-1B visa petition is pending and before the approved H-1B start date of October 1?
The H-1B Cap: Congress has allocated 65,000 H-1B visa numbers available every fiscal year. It has also allocated an additional 20,000 H-1B visa numbers for individuals holding U.S. Master’s degrees or higher. Both the Master’s “cap” and the regular “cap” were oversubscribed immediately last year, and are expected to be oversubscribed again this year.
What is the Gap? The gap is between the expiration date of a student’s F-1 OPT status and the start date of the approved H-1B visa petition, which is usually October 1. By regulation, an employer cannot file, and the United States Citizenship and Immigration Services (USCIS) cannot approve, an H-1B visa petition submitted earlier than six months before the start date. April 1 is the earliest date to file a new cap-subject H-1B visa petition because October 1 is the beginning of the new government fiscal year when new H-1B visa numbers are released (for those not previously counted toward the H-1B cap in the last six years). As such, the earliest an F-1 student in OPT may begin working in H-1B status is October 1. So what happens when a student’s F-1 OPT expires before the H-1B petition start date of October 1?
Cap-gap extension: OPT employment authorization and authorized status are automatically extended for any F-1 student who is the beneficiary of a timely filed H-1B visa petition requesting a change of status with a start date of October 1. This allows the F-1 student who is in a period of authorized OPT when the H-1B petition was filed to remain in status and continue working until the start date of the approved H-1B visa petition.
Qualifying for cap-gap extension: To qualify for a cap gap extension an F-1 student must:
1. the beneficiary of a timely filed H-1B petition;
2. Have an H-1B employment start date of October 1st;
3. Request a change of status; and
4. Not have violated the conditions of the F-1 visa status.
Things to keep in mind:
- No application is required for cap-gap protection. However, students should notify their designated school official (DSO) at their school to verify that the SEVIS record accurately reflects their status. F-1 students should also ask their employers for a copy of the USCIS issued receipt notice for their pending H-1B visa petition.
- If the H-1B visa petition is denied, withdrawn, revoked, or is not selected, the cap-gap extension terminates. If the student’s OPT has expired,s/he will have the standard 60-day grace period from the date of the rejection notice to prepare for and depart the United States or change to another status. F-1 students are not work authorized during this grace period.
- Cap-gap extension of OPT does not extend beyond September 30. If the H-1B visa petition is pending beyond September 30, a student can remain in the U.S. based on a pending change of status petition, but must stop working until a decision is made on the H-1B visa petition.
- Students should use great caution when determining whether to travel outside the U.S. during the cap-gap period. USCIS considers students with applications to change visa status to have abandoned their application if they depart while it is pending. It is best to check with your DSO and your employer before making any travel plans outside of the U.S.
Posted by: Holly Hatton